Hadley Arkes, a poor polemicist

Professor Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. He is a political scientist.

Arkes is not a fan of mine because of the partial-birth abortion cases I decided and which ended up in the Supreme Court. See, e.g., Hadley P. Arkes, Gonzales v. Carhart: What Hath Kennedy Wrought?, The Federalist Society (June 3, 2007)  (“The old, implausible charge of ‘vagueness’ could be rolled out again, and one could count on Judge Richard Kopf in Nebraska to sustain that claim, or virtually any other colorable ground that people were audacious enough to offer as a ground for challenging the law.”) (requires download of PDF); Hadley Arkes, Good May Yet Come Gonzales v. Carhart opens up a possibility, albeit slight, for further restricting abortion, National Review Online (April 24, 2007) (“My own apprehension was that the Dr. Carharts in the country, or the agents of Planned Parenthood, would simply come into court again with any of the rationales that have worked in the past. Judges like Richard Kopf in Nebraska have already shown themselves altogether willing to credit any argument that is offered by the challengers.”); Hadley Arkes, Natural Rights and the Right to ChooseCambridge University Press pp. 122, 140, 239 (2004) (stating, among other things, that by “preserving [his] commitment to abortion unimpaired, unqualified, [Kopf is] compelled to say things that judges, or cultivated men, could not have said in public in another age. . . . In other words, Dismemberment ‘R’ Us.”).

Now, I don’t care a bit about what Arkes thinks of me or my decisions. Indeed, he is not a lawyer, and I find his thinking shallow. Moreover, he is a “natural rights” devotee and I agree with Bentham that such stuff is “nonsense on stilts.” That said, Brother Arkes is entitled to pick his own poison. But I draw the line when he accuses me of being a Catholic-hating religious bigot.*

In Another Opening, Another Show: The Red Mass of 2014, The Catholic Thing (October 7, 2014), Arkes writes the following about me in the context of the Red Mass** attended by Chief Justice Roberts, and Associate Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Elena Kagan at St. Matthew’s Cathedral in Washington, DC:

In the aftermath last year of the Hobby Lobby case, one federal judge, Richard Kopf, denounced that decision as one produced by “five male justices of the Supreme Court, who are all members of the Catholic faith.” The offense imputed to these Catholic judges is that they shielded a businessman from the obligation to purchase abortifacients for his employees when he bore deep moral objections to abortion.

“To the average person,” said Judge Kopf, “the result looks stupid and smells worse.” No, the average person is more likely to wonder why women cannot afford contraceptives and abortifacients for themselves. Or why the provision of these devices should become the obligation of an employer – and why they should be forced on a generous employer who has moral objections to them.

A small trip down memory lane may bring back Judge Kopf as the federal judge who treated with contempt the work of the legislators in Nebraska in seeking to forbid the grisly procedure named “partial-birth abortion.” In that procedure the head of the child was punctured and its brains sucked out. But Judge Kopf couldn’t see how this procedure could be distinguished from others, quite beyond challenge.

For other abortions “routinely ‘deliberately and intentionally’ deliver ‘vaginally’ a ‘substantial portion’ of a living fetus in order to kill it.” In other words, Dismemberment R Us. That is what abortion involves, all thoroughly sustained by the Constitution, in the eyes of Judge Kopf, and all apparently beyond the reproach, except from Catholic judges appointed by a Republican president.

Arkes is referring to and partially quoting from an earlier post of mine entitled Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases.  In the part of the post that Arkes summarizes inaccurately, I made a point about judicial decisions, appearances and the public’s acceptance of the law. This is what I wrote:

In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.

(Emphasis added.)

It is a poor polemicist indeed who blatantly and consciously misrepresents another person’s views in an effort to score a cheap point. But, in truth, such conduct, while in poor taste, is probably only a venial sin. So, Hadley, say you’re sorry–it is the natural thing to do–and all will be forgiven.

RGK

*Being Catholics, my wife and five of her siblings would find such a suggestion amusing. Candor requires that I admit that a sixth sibling became an Episcopalian–she was always a wild child.

**I am mystified by the Professor’s attack on me in an article about the Red Mass.

35 responses

  1. I have been wondering this for half a decade now (several of my friends majored in it and I still can’t get a straight answer):

    What the hell is a political scientist and what does it have to do with science?

    -SLS

  2. SLS,

    Way back when, the study of government morphed into “political science” as more and more government teachers employed quantitative methods to answer academic questions. When I decided to reject an offer to do a paid PhD at a Big Ten University some 45 years ago, I wanted to teach and study classical political thought. Think Plato to Hobbes. That was seen as career suicide, and I was told exactly that by the “political scientists.”

    So, off to law school I went on a scholarship. It kept me out of the draft and it seemed more interesting than trying to determine whether an “R squared” of .89 was good enough to say that two inconsequential things might be related. In short, “political science” means whatever the professor says it means.

    In Arkes’ case, it means spouting circular natural law concepts that suit his fancy. To be specific, he probably quotes Thomas Aquinas and John Locke at the drop of the hat.

    All the best.

    RGK

  3. They say a picture is worth a thousand words, so here’s my view on both natural law and political science….

    -SLS

  4. I would not let the nonsense bother you. Arkes belongs to a group of American Catholic intellectuals who thinks everyone who disagrees with them are enemies of the true faith. If you have been following the Synod it seems Walter Kaspar and maybe the Pope are in that club of anti Catholics. Abortion is their hot button issue with the Bishop in RI encouraging votes for dead people since no living candidate is right on the issue. I always though Mario Cuomo and Father Drinan were right on the issue of abortion, but that is one on many reasons my Catholic credentials are very rusty.

  5. I’m not interested in helping the pageview metrics for Prof. Arkes, so I’ll risk commenting without reading the source material:

    While I agree that Prof. Arkes appears to be looking for opportunities to attack you, nothing you quote in your post accuses you of being a “Catholic-hating religious bigot.” He absolutely distorts your prior post to suit his own needs, but perhaps there are more direct accusations of bigotry that you chose not to reprint?

    As a matter of process, your response makes me wonder how you evaluate when & how to respond to the slings and arrows of your detractors. As a judge and a blogger, you have a higher profile than most, and therefore are a frequent subject of comment, both civil and profane, thoughtful and reactionary. While some of us have the luxury of responding to every critic, I doubt your responsibilities or your sanity would permit a point-by-point rebuttal of all who offer comment about your opinions or your work.

    So how do you decide what merits a response and what can be ignored? If I had seen Prof. Arkes’ article from another source, I would have guessed that you would ignore/dismiss it and continue on. Your response was therefore appropriate but nonetheless surprising.

    In the absence of any objective standard for deciding when to dive in to the fray, perhaps you’ll offer your thoughts about what kind of things have, over the years, bothered you enough that you couldn’t resist engaging.

  6. Back in the day, I got my undergraduate education at Brandeis. The department was politics, not political science. I always figured that that was because John Roche, the department’s leading light then, didn’t think there was much science in it. More art, I suspect.

  7. Could not resist quoting the line from Roche’s little intro to con law that the Civil War was the most important amendment to the Constitution. Majority of current SCOTUS seems not to have noticed that one.

  8. DBS,

    Great question.

    There were numerous reaons. Three judges dealt with the most recent partial-birth abortion matter (the federal statute) and all three came to the same conclusion, but Arkes seems fixated on me. Weaving me into the Red Mass article was weird and unnecessary and very snarky. Further, I received tons of nasty e-mails after the last partial-birth abortion case and then, again, after the Hobby Lobby post explicitly accusing me of anti-Catholic bias–Arkes provides intellectual cover for those idiots. Even further, I needed something to write about. Finally, the “natural law” bullshit that Arkes spouts–and the implicit assertion of moral superiority inherent therein–pisses me off.

    Post a responsive comment if you want to explore this further. It is perfectly fair to question my motivations.

    All the best.

    RGK

  9. Jon,

    Some political scientists are really scientists. Not many, but some. Lee Epstein and Jack Knight are great examples of political scientists who study judicial behavior using empirical methods. See here.

    All the best.

    RGK

  10. Old joke from my youth. The Archbishop of Canterbury died and went to Heaven. St Peter was showing him the various neighborhoods to help him pick a house. Came to one area where Peter demanded silence. After they had left it Peter explained that that was the Catholic neighborhood and they would not think it was paradise if they knew the Anglican got in.

  11. RGK,

    You are right to call him out. Putting aside his “natural law” principles, he has no business using intellectually dishonest means to question your faith or your sincerity. That you are able to separate your religious beliefs from your judicial function of interpreting the law should garner you praise, not scorn.

    My two cents,

    Da Man.

  12. Dear Da Man,

    I won’t touch that with a long stick. To each his own.

    By the way, my cousin, who converted to the Jewish faith after a career in the State Department and multiple tours in Islamic countries, has speculated in a book he wrote that our paternal grandmother may have hailed from a German Jewish family but kept it secret. See Does a federal trial judge’s personal life matter?

    All the best.

    RGK

  13. HA! I have a similar version of same joke “from my youth”. A Lutheran dies and goes to Heaven. St. Pete is showing him around and they come upon a big fortress-like castle surrounded by a moat, high walls topped with barb-wire, etc. The Lutheran asks, “What’s that?” St. Pete says, “Oh, that’s just the Catholics. They think they’re the only ones here.” Ka-Chunk. 🙂 (Yes, I was born and raised a Lutheran – a more free-wheeling Methodist now.) You can probably substitute any religion you want behind the walls, depending on your audience.

  14. I wasn’t trying to be (or to get you to be) controversial. It just seems to me that he converted to a faith that he believed was more aggressively aligned with his views on morality. I don’t know that that was necessary: there are plenty of ultra-conservative Jews who find abortion morally repugnant.

  15. I was told the joke by a Catholic bishop commenting on the reaction of many American Catholics to Vatican II and its statement on other faiths.

  16. Kopf: “[Arkes] is a “natural rights” devotee and I agree with [Jeremy] Bentham that such stuff is “nonsense on stilts.”

    Wow! Now, that is a bridge too far, even for me. All that “natural rights” theory ultimately asserts is that we have certain innate rights as a necessary consequence of our existence.

    It is scarcely possible to understand the Constitution and “the Framers’ intent” without reference to natural law. The Declaration of Independence makes no sense without it. The Bill of Rights uses words like “abridged,” “infringed,” “preserved,” and “retained,” which presuppose that Man had rights before governments existed.

    So, where DO we get our rights? From the largesse of government? That IS Bentham, in a nutshell. That “law” is the command of the sovereign, and nothing more. That we are ruled by law, as opposed to having no king but the law.

    Kopf: “In Arkes’ case, it means spouting circular natural law concepts that suit his fancy. To be specific, he probably quotes Thomas Aquinas and John Locke at the drop of the hat.

    I don’t know any concept in natural law that is circular in nature. It rests on a self-evident premise: We have rights as a necessary consequence of our existence. Government begins with a simple transaction: We give up certain rights and assume obligations in exchange for “civil rights,” which are procedural rights designed to protect the ones we have retained. Government can only take those rights we have ceded, and only as required to discharge the duties we have assigned to it. Locke put it this way:

    AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to. And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage. When the governor, however intitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion.

    The Constitution and Bill of Rights mark the proper bounds of government powers, and it is your job to make certain that the government colors inside the lines. (Of course, this rule also applies to out-of-control judges.)

    I can also cite Blackstone, Story, St. George Tucker, and others for this, if you like. But where is there even a hint of circularity in the above? You made the charge and by your own standards, you have an obligation to make it stick. Forgive me if I am missing something obvious.

    Kopf: “Now, I don’t care a bit about what Arkes thinks of me or my decisions. Indeed, he is not a lawyer, and I find his thinking shallow.

    Neither was the Jeremy Bentham you agree with. Jes sayin’…. But if you want “shallow,” you can easily start with Bentham.

    Kopf: “It is a poor polemicist indeed who blatantly and consciously misrepresents another person’s views in an effort to score a cheap point.

    It is also the stock in trade of the appellate judge: fabricating facts, misrepresenting arguments in briefs, and massaging the law to arrive at a predetermined conclusion. And let us not forget that judges (esp. Posner) admit it.

    You can dump on Arkes to your heart’s content, but please leave natural law out of it.

  17. And what, pray tell, would you replace it with? How do you interpret the Constitution in a more principled manner? As Scalia says, you can’t beat something with nothing.

  18. As for me, I’m just going to break out the popcorn. Arkes will respond, and this has the potential to be another Scalia v. Posner.

  19. Dear Absinthe-Minded Perfesser,

    You write: “I don’t know any concept in natural law that is circular in nature. It rests on a self-evident premise: We have rights as a necessary consequence of our existence.”

    When, in two sentences, each next to the other, you assert that natural law is not circular and then you write that natural law is not circular because natural law is “self-evident,” tell me what part of such reasoning is different from a dog chasing its tail.

    All the best.

    RGK

    PS I agree with you that you need to read the natural law philosphers, especially John Locke, to understand the aspirations of the Founders and the Constitution. But one ought also to read David Hume and A Treatise of Human Nature (1739) plus many, many others.

  20. Perfesser,Love the idea of cavemen asserting their right to freedom of the press, and I imagine church and state discussions were very emotional among the ancient Greeks as they searched for copies of the Social Contract, an. invention of the Spanish Jesuits to justify the conquest of the Americas,see Tucks history. That most of the Founders accepted some idea of natural law is true, though whether it was Lock’s is questionable. Substantive economic due process was viewed by most of its friends as natural law. Given all that the Judge may be allowed his doubts, and quite honestly Arkes is offensive and is no great fan of rights talk, which is blamed for causing promiscuity in his circles.

  21. “How do you interpret the Constitution in a more principled manner?”

    That’s an excellent question. I can say with certainty that I have no idea how to. I don’t think such a concept exists. I don’t know what a more principled manner is.

    I don’t suggest replacing it with anything. I, for one, cannot find a cohesive, universal system of human morals. I don’t think one exists. I have never seen a universal moral system that can arise beyond the rest of the pact and convince me (and the rest of humanity) that it is truly the universal system.

    And honestly, that’s probably a good thing under our Constitution. We all have to get along, and we all have our own way of doing things. An environment that allows some bending of laws is better than one that favors strict interpretation and takes away the power to change.

  22. Judge:
    Expecting an academic to apologize for something that he has said/written is like hoping to win the lottery. Professors no doubt view themselves as member of an elite whose job, as befits one’s betters, is to deign to offer their teachings as Holy Writ. Constitutions and legal precedents are but speed bumps on the way to total victory in the culture wars.
    Robert

  23. With respect, Your Honor, our disagreement is largely definitional. I proceed from the philosophical paradigm of classical foundationalism, where certain propositions are properly basic and others, ultimately derived from basic propositions.

    A perfect case in point is Descartes’ cogito. “I think” is properly basic, and the conclusion that “I am” is either self-evident or a fait accompli, as if I am not, it doesn’t matter what I think.

    In the Lockean wilderness, best thought of as an island over which there is no sovereign, if I am the only one on that island, I have absolute freedom of both thought and inquiry. I have an absolute freedom to say whatever I want, even if there is no one to hear. I can play my boom-box at 4 AM, dump arsenic in the water supply, and in theory, even own a nuclear weapon. These are our “natural rights,” which are a necessary consequence of our existence. This is what I would describe as either a self-evident proposition or a fait accompli; it matters not where you end up. I am my own sovereign.

    If I leave the island for England, and they agree to let me in, I give assent to their social contract. In doing so, I agree to cede certain of my natural rights and assume certain responsibilities and in exchange, I receive what we here call “civil rights,” an orderly procedure by which my rights are protected. I am no longer my own sovereign.

    What I don’t see is anything that qualifies as “circular reasoning,” unless you define circularity in such a broad way that “2 + 2 = 4” is not true by definition, and all of math and geometry is ultimately circular.

    I can boast a working familiarity with Hume, Austin, and their progeny, but that does not seem relevant to the question of circularity.

  24. If you understand freedom of the press as a subset of freedom of speech, the leap is more like a shuffle. The caveman’s newspaper was the wall of his cave. I’ll say more about this later, but must run.

  25. Unfortunately the cave drawing that failed to meet contemporary community standards were ordered erased by the Superior Court of Rock County, depriving us of early and important items in the story . t.of pornography.

  26. RL,

    Indeed, it is the ancient struggle — between those who wish to dominate others, and who wish to be free from domination. That doesn’t alter or invalidate Lockean analysis which, like the ideas of Adam Smith, are founded on a hypothetical. Blackstone referred to “the laws of nature and reason,” discernible by logic and reason, which was part and parcel of the deism of the day.

    I am surprised that you judge Arkes so harshly, as he appears to be in your camp: “That understanding of the regime could not be explained without the recognition then of moral truths, of standards of moral judgment that had to be there before we could even conceive a Constitution.” Locke’s innovation — and one that he most surely did not intend — is that he showed us how to get there without “morals.” You could go straight from Hobbes’s state of nature (where life is nasty, brutish, and short) to a society governed by the rule of law through the mechanism of contract.

    Having waded through Arkes’s idiocy, I share your disdain for it. A judge has no authority to create rights, but can only recognize them, and the value of natural law is limited to divination of what was “in the contract.” Arkes grafts a religious dimension (as did Aquinas) onto it, resulting in a Catholic analogue to shari’a law. We can leave him to wallow in his stupidity.

    RL: “That most of the Founders accepted some idea of natural law is true, though whether it was Lock’s is questionable.”

    This is the question we need to answer, if we are to have any hope of ascertaining what is “in the contract.” Madison stated to Congress that he could not hope to list all of the inherent rights of Man, which provides us a reliable picture of what he meant in the 9/10Ams. And this, by process of elimination, leaves us with Professor Barnett’s “presumption of liberty.”

    The natural right of free speech and inquiry has always existed, but it is equally undeniable that societies have abridged it, such as in your Superior Court of Rock County. It was “in there” and made explicit, but what of William Penn, and his right not to have to remove his hat? By the same line of logic, abortion, same-sex marriage (as a subset of the right to contract), and all the things Arkes decries are “in there,” as well. The Government can only infringe these natural rights, and only when it is permitted by the Constitution.

    My point is a subtle one. The canyon between “natural law” and Arkes’s partisan bastardization of it is too wide for Evel Kneivel to jump. Blackstone’s natural law is accessible through reason, with no particular need for deference to any church.

  27. SLS,

    It is not that natural law controls the Constitution, but the notion of contract does. John Locke gets us to that understanding, and Blackstone provides the superstructure. The Framers were, as Scalia adroitly put it, trying to secure “the rights of Englishmen” in perpetuity. And this necessarily implicates natural law.

    A contract doesn’t need morals. One could even say that it is for people without morals. Article III is a sort of arbitration clause, in which we select our arbiters and dictate how they are to do their job. Judges shall have the judicial Power, which is the power to declare the law, as opposed to write it. One could quibble over whether the common law was judge-written law (Austin), but in theory, judges were supposed to divine the common law, and if Parliament disagreed, it could pass laws to overturn judge-made common law.

    I’m not sure that anything you assert is necessarily inconsistent with the above. As Scalia argues, law is not to be read strictly, but reasonably. The difference, of course, is in whether a judge is bending the law or shattering it. (We won’t tolerate the latter, nor should we.)

    The Constitution is not a manifesto of some airy-fairy moral law. It is a contract, and should be interpreted as such. It is a treaty between contracting States, and as is true with respect to all treaties (read the Vienna Convention on Treaties), contract law applies.

    The classic example of this is the “stitch in time that saved the Nine,” where the first Justice Roberts switched sides to enable Roosevelt to create the modern administrative state, complete with Social Security. Law adapts to meet the needs of society, and we could either scrap our Constitution, change it, or find some “play in the joints.” I would contend that there is enough play in the joints that it didn’t need to be scrapped, but that is a reasonable way to read any contract.

    Natural law enables us to understand what the parties intended, but the contract rules.

  28. Perfesser, I have a certain faith in natural law and a rather Burkean affinity for the title deeds of history, but I am not as impressed with Social Contract theory. I doubt that answers are easily unravel from constitutional history and share the Judges reluctance to impose my ideas on the political process through adjudication. I cannot even get my Frenchie to obey me let alone desire to dominate other
    The derivation of Barnett as the guide to the Constitution I find unbelievable. If we have waited this long for the one true answer book we can pass on Barnett and wait longer.
    Blackstone’s ideas of reason and natural law were the common currency of Anglican thought since Hooker, but I am not impressed with a guy who could not get the Squib Case right any way.i.

  29. Judge Kopf: Highly amusing diatribe. I take your misquoted essay as essentially saying justice should be done and, just as importantly, be seen to be done. But isn’t Arkes doing to you what you suspected angry populists would do to the 5 male Catholics on the Supreme Court? And if so, shouldn’t you be flattered, not peeved?

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